Proceeds of crime
Account freezing & forfeiture orders
“They are fantastic – they are experts who are cerebral and think intellectually about issues.”
CHAMBERS UK 2021
The Criminal Finances Act 2017 provides UK law enforcement with an array of new powers, which are all designed to make it easier to freeze and forfeit property alleged to have been obtained in the context of criminal conduct allegedly committed anywhere.
Such property is deemed to be “recoverable property”. An Account Freezing Order, a precursor to an Asset Forfeiture Order, concerns one type of alleged recoverable property; credit balances held in any UK bank account. A magistrates’ court can order a freezing of the account for up to two years if there is a reasonable suspicion that the balance is recoverable. Then it can order forfeiture of the entire balance if it is satisfied that it was obtained through unlawful conduct or was intended for use in unlawful conduct.
Corker Binning has already gained substantial experience in successfully opposing applications for freezing and forfeiture. Grounds for opposition have included;
(a) A lack of analysis as to how the credit balance can be traced back to the alleged unlawful conduct. It is, therefore, not recoverable;
(b) No evidential basis for alleging that the credit balance was intended for use in unlawful conduct;
(c) The owner of the credit balance obtained the money it represents in good faith and without suspicion that it constituted recoverable property;
(d) A forfeiture order would be disproportionate and offend the European Convention on Human Rights.
These orders are intended to be used by law enforcement to forfeit large sums of money without having to prosecute anyone and prove their guilt. They are, therefore, relatively easy to obtain and require a careful strategy in order to defeat.
The National Crime Agency is advertising the availability of these orders to its foreign counterparts. This firm has already advised non-UK clients based in Pakistan, Russia and Zimbabwe.
- Advising two Russian nationals on an application by the Metropolitan Police Service (MPS) for forfeiture of approximately £13m held in multiple UK bank accounts – the MPS withdrew the application following service of detailed expert and witness evidence and agreed to pay a substantial sum of money in lieu of our clients’ legal costs
- Advising a Pakistani national on an application by the National Crime Agency (NCA) for account freezing orders over significant funds held in UK bank accounts
- Persuading HMRC and the NCA to withdraw account freezing orders in relation to a legitimate Zimbabwean cash transfer business